Judgment Sheet

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Ist Appeal No. D – 25 of 2018

Before:

Mr. Justice Muhammad Junaid Ghaffar

Mr. Justice Zulfiqar Ali Sangi

Appellant: Abdul Waheed, through

Mr. Fareed Ahmed Soomro, Advocate.

Respondent No.1: Manager House Building Finance

Company Limited Sukkur through Attorney Mir Ali Raza Talpur, through

Mr. Shafique Ahmed Laghari, Advocate.

Respondent No.2: Banking Court I, Sukkur, through

Mr. Bishar Ahmed Rahoojo, Assistant Attorney General.

Date of hearing: 08-09-2021

Date of judgment: 08-09-2021

J U D G M E N T

Muhammad Junaid Ghaffar, J. – This Appeal under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (“Ordinance”) has been filed against judgment and decree dated 17-05-2018 and 19‑05‑2018, respectively, passed by the learned Judge of Banking Court I at Sukkur in Suit No.376 of 2015, whereby, the Suit has been decreed as prayed.

2. Learned Counsel for the Appellant submits that the very Suit of Respondent was not maintainable; that the Banking Court was required to pass a reasoned order on the application under Order IX Rule 7 CPC and so also on the application under Section 10 of the Ordinance; that in view of such position, the impugned judgment is liable to be set aside.

3. On the other hand, Respondent’s Counsel has supported the impugned judgment and submits that since the Appellant failed to seek leave to defend, whereas, availing of finance facility has not been denied; no case is made out.

4. We have heard both the learned Counsel and perused the record. Insofar as the issue in hand regarding application under Order IX Rule 7 CPC along with an application under Section 10 of the Ordinance for leave to defend is concerned, as per the available record, it appears that after being duly served through summons by all modes under the Ordinance, the Appellant failed to file leave to defend and was thereafter declared ex parte on 12-01-2016. Subsequently, on 18-02-2016, the Appellant filed an application under Order IX Rule 7 CPC for recalling the ex parte order and an application under Section 10 of the Ordinance. Both these applications were filed belatedly and the same were also dismissed by the Banking Court. On perusal of the application under Order IX Rule 7 CPC, it appears that the same is not only misconceived but did not disclose any legal justification to seek an order for recalling the ex parte order. Nothing was stated except that the Appellant was not mentally in a position to pursue the issue. Though no case for any indulgence on this ground is made out, however, in view of order dated 29-08-2018 passed in this Appeal by a learned Division of this Court, we have perused the application under Section 10 of the Ordinance for leave to defend, and on perusal of the same, it appears that even if the ex parte order would have been recalled and the leave to defend application would have been heard on merits, the same would have met the same fate as no justifiable ground has been stated in the said application.

5. We have confronted the Appellant’s Counsel that as to what defence was taken by the Appellant before the Banking Court, and in support, he has referred to leave to defend application. On perusal of the same, it depicts that the same was not filed in compliance of Section 10(4) of the Ordinance, which requires to state the amount of finance availed; the amount paid along with dates of payments; and the amount if any which the borrower disputes as payable to Bank, and therefore, no case is made out. The amount of finance has never been disputed and a very moderate amount has been returned, therefore, the Appeal has no merits and is therefore dismissed.

J U D G E

Abdul Basit